(Super. Ct. No. 09F07752)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Dedrick Turner, aka Dedrick T. Dennis, guilty of battery causing serious bodily injury (Pen. Code, § 243, subd. (d))*fn1 and assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)) on Cortney Burton Kavanas. The jury also found true allegations defendant personally inflicted great bodily injury upon Kavanas in the commission of those offenses. (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a).) In a bifurcated proceeding, defendant admitted allegations he served four prior prison terms.
The trial court sentenced defendant to an aggregate term of 11 years in state prison, consisting of four years (the upper term) for the assault, plus a consecutive three years for the great bodily injury enhancement pursuant to section 12022.7, subdivision (a), plus one additional year for each of his four prior prison terms. The court stayed defendant's sentence for the battery pursuant to section 654. The court imposed, among other things, a $30 court facilities assessment for each conviction. (Gov. Code, § 70373, subd. (a).)
Defendant appeals, contending (1) his trial counsel was ineffective in failing to oppose the prosecution's motion to exclude evidence of third party culpability, and (2) the imposition of a $30 court facilities assessment on his battery conviction constitutes an unauthorized sentence because his sentence for that offense was stayed.
We shall conclude that defendant has failed to show his trial counsel was ineffective in failing to oppose the prosecution's motion to exclude evidence of third party culpability. While defendant proffered evidence that Kavanas' former boyfriend might have had a motive to harm Kavanas, defendant has failed to proffer any evidence linking the boyfriend (or anyone else) to the actual perpetration of the crime. (See People v. McWhorter (2009) 47 Cal.4th 318, 367-368 (McWhorter).) Moreover, where, as here, the proffered evidence does not sufficiently connect the other person to the crime, it may be excluded without violating the federal Constitution. (Holmes v. South Carolina (2006) 547 U.S. 329, 327 [164 L.Ed.2d 503, 510] (Holmes).) Accordingly, any opposition to the prosecution's motion would have been meritless, and as a result, defendant cannot show his trial counsel was ineffective in failing to oppose the motion. We shall further conclude that the trial court was required to impose a $30 court facilities assessment for defendant's battery conviction even though punishment for that offense had been stayed. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to the incident, defendant and Kavanas were friends. In June 2009, Kavanas moved out of her boyfriend's home and she and defendant began to spend more time together. On July 25, 2009, defendant was driving Kavanas and others to a party, when he suddenly stopped the car, walked around to passenger side of the car where Kavanas was seated, opened the door, told Kavanas, "I'm not playing with you anymore," dragged her out of the car, pushed her against the trunk, struck her in the face several times, and drove off with Kavanas' purse and cell phone still inside his car. The next day, defendant dropped off Kavanas' purse and cell phone at her next door neighbor's apartment.
The next day, July 26, 2009, Kavanas went to the hospital where she was interviewed by a sheriff's deputy and identified defendant as her attacker. Kavanas suffered a broken jaw as a result of the attack.
Defendant testified in his defense at trial. He denied seeing or speaking with Kavanas on July 25, 2009. He denied ever hitting or pushing her. He also denied possessing Kavanas' cell phone or purse ...